STATE OF HIMACHAL PRADESH Vs. ASHWANI KUMAR & ORS.

STATE OF HIMACHAL PRADESH Vs. ASHWANI KUMAR & ORS. On 1 September 2017

Law Point:
Presumption as to abetment of suicide by married woman is cruelty. It has to be established that wife was subjected to cruelty as ingrained in Section 498A, IPC.

JUDGEMENT

The present appeal has been preferred by the appellant/State (hereinafter referred to as “the appellant”) laying challenge to judgment, dated 28.5.2012, passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No. 22-J/VII/2011 (Sessions Trial No. 10/12), whereby the accused persons/respondents (hereinafter referred to as “the accused persons”) were acquitted for the offence punishable under Sections 498-A, 306 and 404 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”).

2. Succinctly, the facts giving rise to the present appeal, as per the prosecution, are that on 16.6.2011 complainant, Smt. Nirmala Devi, mother of Anita Devi (deceased) lodged a complaint with the police, alleging that in February, 2009, her daughter, Anita Devi, was married with accused Ashwani Kumar, after three months of marriage accused persons, being husband, father-in-law, mother-in-law and devar (brother-in-law) of the deceased started maltreating the deceased for not bringing dowry. The deceased, on her visits to the house of the complainant, used to tell about the conduct of the accused persons. As per the complainant, the deceased was ousted from her matrimonial home 3-4 times, however, every time she was sent back and the accused persons were asked to mend their behaviour towards the deceased. Despite repeated requests, the behaviour of the accused persons further deteriorated towards the deceased. On 16.6.2011, at about 8:30 a.m., the complainant came to know from accused Brahmi Devi (mother-in-law of the deceased) that the deceased has consumed some medicine. When the complainant reached at Shahpur/Rait, she came to know that her daughter has expired in Tanda Hospital, so she alighted en route and subsequently went to Tanda Hospital with other villagers. The deceased was having four months’ infant and she committed suicide yielding to mental and physical torture meted out by the accused persons for not bringing dowry. As per the prosecution, the deceased was initially taken to CHC, Shahpur, where she was not found fit to give statement and therefrom she was referred to Rajendra Prasad Government Medical College, Tanda. In CHC, Shahpur, gastric levage and Other necessary material was preserved for chemical analysis. The deceased expired in Tanda Hospital and her inquest papers were prepared. Post mortem report of the deceased was obtained and necessary samples were preserved by the Medical Officer, which were sent for chemical analysis. As per the medical opinion, the deceased died due to “phosphine gas poisoning”. Police thoroughly investigated the matter and recorded the statements of the witnesses. The spot map was prepared. The corpse was photographed, marriage certificate, copy of Pariwar Register and call record were taken into possession. As per the prosecution, the accused persons also dishonestly misappropriated the ornaments of the deceased. The police, after exhaustively investigating the matter, found that the accused persons used to torture the deceased physically and mentally and so they abetted her to commit suicide. After completion of investigation, challan was presented in the Court.

3. The prosecution, in order to prove its case, examined as many as twenty two witnesses. Statements of the accused persons were recorded under Section 313, Cr.P.C., wherein they denied the prosecution case and claimed innocence, however, the accused persons did not examine any defence witness.

5. Learned Additional Advocate General has argued that the proof required under Section 498-A is not strict proof, but only preponderance of probabilities are required to be established. He has further argued that the statements of the witnesses i.e. PW1 and PW3 clearly establish the guilt of the accused persons beyond the shadow of reasonable doubt. To support his arguments, he has relied upon the law as laid down by Hon’ble Supreme Court in V.K. Mishra & Another v. State of Uttrakhand & Another, II (2015) DMC 747 (SC)=VI (2015) SLT 132=IV (2015) DLT (CRL.) 346 (SC)=2015 (9) SCC 588. Learned Additional Advocate General has further argued that in case the evidence as a whole is taken into consideration, the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. He has further relied upon the decision of Hon’ble Supreme Court rendered in Rajinder Singh v. State of Punjab, 2015 (6) SCC 477.

6. On the other hand, learned Counsel appearing for the respondents has argued that Smt. Nirmala Devi (PW-1), mother of the deceased, in her cross-examination, has admitted that the accused persons never raised any demand of dowry and so the judgments as cited by the learned Additional Advocate General are not applicable to the facts of the present case. He has further argued that Mr. Amar Singh, Up-Pradhan (PW-3), though deposed with regard to some oral complaint earlier made to him, however, his statement is not at all reliable simply for the reason that he was not Up-Pradhan of the concerned Panchayat and he has failed to show any written record with regard to the complaint made by the prosecutrix or her father. He has further argued that the material witness Sunita was not examined and the statements of the witnesses, if read as a whole, go to show that no case is made out against the accused persons and the judgment passed by the learned Court below is just, reasoned and no interference is called for.

7. In rebuttal, the learned Additional Advocate General has argued that the written complaint was not made by the father of the prosecutrix to Up-Pradhan and this fact stands duly explained by the Up-Pradhan that the family of the prosecutrix has to marry their other two daughters.

8. In order to appreciate the rival contentions of the parties, we have gone through the record carefully and in detail.

9. The complainant, Smt. Nirmala Devi (PW-1), who is mother of the deceased, while appearing in the witness-box deposed that the deceased was married with accused Ashwani Kumar in February 2009, however, only after three months accused persons started torturing her for not bringing any dowry. PW-1 twice/thrice asked the deceased to go to her matrimonial home. She has further deposed that she along with Smt. Jogindera Devi (PW-2) went to the house of the accused persons asking them to mend their behaviour, on which the accused persons assured the complainant that they will not repeat such acts in future, but accused Shashi Kant (devar of the deceased) objected for giving assurance and he asked his parents (accused Brahmi Devi and Satpal) to oust the deceased. PW-1 has further deposed that 17-18 days prior to occurrence, the deceased came to their house and she was looking depressed. The deceased divulged that accused persons used to torture her for not bringing dowry and ornaments. She has further deposed that on 16.6.2011, at about 8:30 a.m., police asked her to talk to accused Brahmi Devi, mother-in-law of the deceased, who asked her to see the deceased, as she had consumed some medicine. She rushed to Shahpur and en route near place Rait she came to know from some relative, who telephoned her, that the deceased had been shifted to Tanda Hospital, therefore, she returned to Daraman and took her relatives with her to Tanda Hospital. In Tanda Hospital, she saw the dead body of the deceased and there were no ornaments on her body. She has further deposed that on 15.6.2011 the deceased informed her that accused persons are quarrelling with her and exerting pressure on her to leave the matrimonial home, but she asked the deceased to remain there and gave her assurance that she would come tomorrow. As per this witness, due to the harassment and torture meted out by the accused persons on the deceased, she was compelled to end her life. This witness, in her cross-examination, has deposed that accused Ashwani (husband of the deceased) came on leave and on 16.6.2011 he was supposed to return on duty. She feigned her ignorance that the deceased was asking accused Ashwani to take her to Pathankot and he told her that firstly he will make arrangements for accommodation. She denied the suggestion that the deceased was of obstinate nature.

10. PW-2, Smt. Jogindra Devi, deposed that PW-1 is her samdhan and deceased’s sister has been married to her son. When she came to know qua the death of the deceased, she sent her daughter-in-law to the home of the deceased. She along with her son went to Tanda Hospital. This witness has further deposed that the deceased, after her marriage, visited her twice and complained that accused persons used to beat her for not bringing dowry. As per this witness, the deceased also told her that accused persons wanted her to bring dowry or leave their house. She along with PW-1 went to the house of the accused persons for pacifying the matter, but the accused persons said that they did not do anything to the deceased. She has further deposed that father-in-law of the deceased admitted the guilt, but devar of the deceased was saying that oust the deceased from the home. As per this witness, the deceased committed suicide, as she was subjected to harassment for want of dowry. This witness, in her cross-examination, has feigned ignorance that the deceased wanted to reside with accused Ashwani at Pathankot. She has deposed that when she had got the deceased engaged with accused Ashwani, at that time no dowry was demanded. At the time of marriage also no demand for dowry was raised.

11. PW-3, Shri Amar Singh, Up-Pradhan of Gram Panchayat, Hanerra, deposed that the deceased came to him with one Sunita and complained that her mother-in-law and devar used to harass and beat her for not bringing dowry. As per this witness, the deceased was having injury on her forehead. He advised her to call for Panchayat from both the sides for resolving the matter. On subsequent day Nirmala (PW-1) along with her jethani came to him and told that she has to marry other two daughters, so she averted from the Panchayat. The deceased was not happy in her in-laws’ house due to harassment and torture meted out by her in-laws. This witness, in his cross-examination, has deposed that no case was registered with the Panchayat against the accused persons and he did not get the deceased medically examined.

12. PW-4, Dr. Mohan Singh, Medical Officer, deposed that on 16.6.201, around 8:00 a.m., the deceased was brought before him with alleged history of consuming some poisonous substance. On application, Ex. PW-4/A, moved by the police, he conducted medical examination of the deceased and observed as under:

“Patient was drowsy, not responding to command, cold clammy skin, BP and Pulse not recorded, foul smelling from her breath was present. History of vomiting at home was given by the attendant.

“Gastric levage was done and first sample preserved for chemical analysis. After giving emergency treatment, patient was referred to RPGMC, Tanda for further management.”

He handed over to police a sealed bottle having a seal containing gastric levage of the deceased and an envelop having four seals containing facsimile seal, medical report of the deceased, forwarding letter to Director, FSL and Police request letter for conducting the medical examination of the deceased. He also issued medico legal certificate of the deceased, which is Ex. PW-4/B. He has further deposed that when the deceased was admitted in the hospital, she was not found fit to give her statement and to this effect he has issued certificate on the application, Ex. PW-4/A, which is encircled in red.

13. PW-5, Shri Chander Shekhar Premi, deposed that in July, 2011, he was posted as JTO, Nurpur. On his directions Office Clerk, Shri Rajesh Sanga, issued record qua telephone No. 230258, which was in the name of Satpal son of Gorkha Ram and the same telephone number was disconnected on 5.8.2010. He issued certificate, Ex. PW-5/A. PW-6, Harbans Lal, Secretary, Gram Panchayat, Bhali, deposed that on 1.7.2011 police, vide application Ex. PW-6/A, requested him for copy of Pariwar Register. He issued copy of Pariwar Register, which is Ex. PW-6/B, relating to the family of Satpal son of Gorkha Ram. He also issued marriage certificate, Ex. PW-6/C, qua the marriage of the deceased with accused Ashwani Kumar.

14. PW-7, Shri Raj Kumar, maternal uncle (mama) of the deceased, has deposed that after three-four months of marriage of the deceased she met him and started weeping. She divulged to him that her husband, mother-in-law and devar used to beat her for want of dowry. He has further deposed that after seven-eight months, the deceased again met him and told him that her motherin- law, husband and devar used to beat and torture her for want of dowry. He requested accused Ashwani Kumar in the house of the parents of the deceased not to harass and torture the deceased, as she belongs to poor family and her father has already expired and they had given what they could afford. Likewise, he made request to accused Satpal on telephone and he assured him not to repeat such activities in future, but despite that the accused persons did not mend their behaviour. On 16.6.2011 her sister (PW-1) informed him that the deceased has committed suicide and he along with his sister and villagers went to Tanda Hospital. He found no ornaments on the dead body of the deceased and it appeared that the ornaments had been removed. As per this witness, the deceased committed suicide owing to harassment and torture administered by the accused persons. Inquest papers, prepared by the police for post mortem, Ex. PW-7/A and Ex. PW-7/B, bear his signatures, which are encircled in red. This witness, in his cross-examination, has deposed that accused Ashwani was doing a private job at Pathankot and the deceased wanted to reside with him at Pathankot. He feigned his ignorance that the deceased had ever asked accused Ahswani to take her to Pathankot.

15. PW-8, Shri Subhash Chand, deposed that on 17.6.2011 he received a phone call from accused Ashwani and he had informed that the deceased has consumed poison. He along with his mother, mother-in-law and other relatives reached Shahpur Bus Stand, but by that time the deceased had been taken to Tanda Hospital by the accused persons. Subsequently they went to Tanda Hospital and saw the dead body of the deceased. The dead body had no ornaments and the same appeared to have been removed. As per this witness, deceased, after her marriage, met him twice and she used to tell that her devar and mother-in-law beat her for not bringing dowry. He has further deposed that his mother and mother-in-law sent the deceased back to her matrimonial house and asked the accused persons not to harass her. The matter was brought to the notice of Pradhan, Gram Panchayat, Harnera, and the Pradhan assured them that he will talk with the in-laws of the deceased, however, in the meantime the deceased consumed poison. This witness, in his cross-examination, has deposed that his statement was not recorded in Tanda Hospital and the same was recorded later on. As per this witness, the statement of his mother-in-law was recorded in Tanda Hospital. He admitted that his statement was recorded after the post mortem and the police were asking them to reach at Tanda Hospital at the earliest. He has admitted that accused Ashwani Kumar was doing a private job at Pathankot. He feigned his ignorance that the deceased intended to live with accused Ashwani Kumar at Pathankot.

16. PW-9, HHC Tilak Gautam, deposed that on 16.6.2011 he along with SI Lekh Raj, was present at Tanda Hospital and SI Lekh Raj handed him rukka, Ex. PW-1/A, which he gave to MHC Police Station, Jawali, on 17.6.2011. He has further deposed that MHC Police Station, Jawali, handed him the case file, which he gave to Lekh Raj. PW-10, HC Rachhpal Singh, deposed that on 16.6.2011, around 10:10 a.m. MHC Police Station, Shahpur telephonically informed Police Post, Kotla, qua poisoning case pertaining to their area. He along with Constable Ranjit reached CH Shahpur, where HC Ranjit Singh was also present. HC Ranjit Singh handed over to him medico legal certificate and vomitings of the deceased and informed him that the deceased had been taken to Tanda Hospital. He has further deposed that he went to Tanda Hospital, where the deceased was declared dead and her dead body was handed over to him. He informed this fact at Police Station, Jawali, wherefrom SI Lekh Ram came and proceeded accordingly. PW-11, HC Ranjit Singh, deposed that on 16.6.2011, around 9.15 a.m., on receipt of telephonic information from CHC, Shahpur, qua some poisoning case, he along with police officials, Ravinder and Suneh Lata, reached CHC, Shahpur. He wrote application, Ex. PW- 4/A, to Medical Officer for obtaining medico legal certificate and opinion whether the deceased is fit to give her statement. The Medical Officer opined that the deceased is not fit to give her statement. The medico legal certificate and vomitings of the deceased, which were given to him by the Medical Officer, were handed over by him to Rachhpal and he informed about the case at Police Station, Shahpur, Police Post, Kotla, and to the parents of the deceased. This witness, in his cross-examination, has deposed that the deceased was brought to Shahpur Hospital by accused Ashwani and Brahmi Devi. PW-12, HHC Parmodh Chand, deposed that on 22.6.2011 MHC Gurdeep Singh, vide RC No. 99/21, handed over him a Dibba viscera with docket, which he deposited on the same day in Regional Forensic Science Laboratory, Dharamshala. As per this witness, the case property remained intact under his custody.

17. PW-13, HC Gurdeep Singh, deposed that on 17.6.2011 SI Lekh Ram deposited with him two parcels, which were sealed with seal CH, Shahpur, and on 19.6.2011 three more parcel sealed were handed over to him. He entered the same in Register No. 19, attested copy whereof is Ex. PW-13/A. On 22.6.2011, vide RC No. 99/21, attested copy of which is Ex. PW-13/B, he sent four parcels through Parmodh to Regional Forensic Science Laboratory, Dharamshala for chemical analysis. PW-14, SI Parkash Chand Verma, deposed that on 16.6.2011 he searched the house of Sat Pal and the nearby area, however, he found neither suicide note nor any objectionable article. As per this witness, he prepared memo, Ex. PW-14/A, in presence of the witnesses Netar Ram and Ashok Kumar. PW-15, ASI Ishwari Prasad, deposed that on 17.6.2011 HHC Tilak Gautam handed over to him rukka, Ex. PW-1/A, which was sent by SI Lekh Ram, whereupon FIR, Ex. PW-15/A, was registered by him. He made endorsement, Ex. PW-15/B, and returned the case file. PW-16, Inspector Hari Pal, deposed that on 1.8.2011 SI Lekh Ram, after completion of investigation, gave him the case file. He prepared the Challan, which bears his signatures. PW-17, Dheeaj Kumar, deposed that on 16.6.2011 on the asking of police, he took photographs of the dead body, which are Ex. PW- 17/A to Ex. PW-17/C. PW-18, HC Pardeep Kumar, deposed that on 12.11.2011 he received the case file from SHO, P.S. Jawali. He recorded the statements of two witnesses and also obtained the photographs of the dead body. He handed over the case file to SHO, Ramesh Chand. This witness, in his cross-examination, has deposed that when he received the case file, challan was already filed in the Court.

18. PW-19, Dr. Atul Gupta, Medical Officer, Dr. RPGMC Kangra at Tanda, deposed that he conducted the post mortem examination of the deceased. As per this witness, in his final opinion, the cause of death of the deceased was phosphine gas poisoning. He gave his final opinion, vide Ex. PW-19/C, which is on the back side of PMR, Ex. PW-19/B, which bears his signatures.

19. PW-20, Smt. Kunta Devi (aunt of the deceased), deposed that the deceased was married to accused Ashwani Kumar about two and half years back. The deceased, during her visits to her parental house, used to weep and tell them that her husband, father-in-law, mother-in-law and brother-in-law used to torture her for want of dowry and they used to call her the daughter of beggars. As per this witness, prior to the incident, she along with PW-1 and one other lady went to the house of the accused persons for enquiring about the matter. On their asking, the father-in-law of the deceased sought an excuse and assured them to desist from their activities in future. However, the brother-in-law of the deceased asked his father why he was seeking excuses and quarrelled with them. She saw the dead body of the deceased and noticed that no ornaments were present on it. She has further deposed that the deceased committed suicide due to the harassment and maltreatment administered to her by the accused persons. This witness, in her cross-examination, has deposed that the police did not record her statement on the day when the deceased died and till 12.11.2011 she did not give her statement to the police. The deceased was not her real niece.

20. PW-21, SI Lekh Ram (Investigating Officer), deposed that on 16.6.2011, around 2:30 p.m., HC Rachhpal (PW-10), Investigating Officer, Police Post, Kotla, telephonically informed at Police Station, Jawali, qua consuming of poison by the deceased. He had also informed that the deceased was taken to Tanda Hospital and he asked to send some NGO to look into the matter. On the basis of the above information, rapat, Ex.PW-21/A, was lodged and he along with other police personnel went to Tanda Hospital. The dead body of the deceased was taken into possession and the relatives of the deceased were informed. He recorded the statement of Smt. Nirmala Devi, Ex. PW-1/A, after making endorsement, Ex. PW-21/B, and sent the same to Police Station for registration of the case. He also prepared the inquest papers, which are Ex. PW-7/A and Ex. PW-7/B. vide application, Ex. PW-19/A, the dead body was sent for conducting post mortem examination. The dead body was photographed and thereafter the same was handed over to accused Ashwani Kumar (husband of the deceased). Statements of the witnesses were recorded and the accused persons were arrested. Record, qua call details, was obtained, which is Ex. PW-21/C. It was unearthed that the deceased was not allowed by the accused persons to use the landline phone to talk with her mother. Marriage certificate, Ex. PW-6/C, and copy of Pariwar Register, Ex. PW-6/B, were obtained. Viscera and vomiting were sent for chemical analysis vide docket, Ex. PW-21/G. FSL report, Ex. PW-19/B, was also obtained. Case file, after completion of investigation, was handed over to SHO Hari Pal Saini. As per this witness, no ornaments were found on the dead body of the deceased and it appeared that the same have been removed, so Section 404 read with Section 34, IPC was added. This witness, in his cross-examination, has denied the suggestion that firstly he prepared the inquest papers and subsequently recorded the statement of the complainant (PW-1). He admitted that on the inquest papers there were no allegations against the accused persons. He denied the suggestion that statements under Sections 154 and 161, Cr.P.C. were recorded after due deliberations. He admitted that no recovery of ornaments was effected from the accused persons. He further admitted that on 16.6.2011 accused Ashwani Kumar had to go to Pathankot, the place of his working.

21. PW-22, SI Ramesh Singh, deposed that on 15.11.2011 HC Pardeep handed over to him the case file and he prepared the supplementary Challan, which bears his signatures.

22. The evidence, which has come on record, demonstrates that the deceased after her marriage visited her parental house twice and complained that accused persons used to beat her for not bringing dowry and when the complainant came to know about the death of the deceased, she went to Tanda Hospital. The complainant has further deposed that the deceased told her that the accused persons wanted her to bring dowry otherwise she would be ousted. This statement of the complainant is fortified by PW-3, Shri Amar Singh, Up-Pradhan of Gram Panchayat, Harnera. On close scrutiny of the statements witnesses, i.e., P W-1, Smt. Nirmala Devi, PW-2, Smt. Jogindra Devi, and PW-3, Shri Amar Singh, it is found that no written complaint had been made to said Up-Pradhan (PW-3). There is also no occasion to make the complaint to Up-Pradhan, that too of a different village, especially when there is Pradhan of the Panchayat. In fact, the fact qua making of the complaint by the deceased to her mother (PW-1) and further complaining the matter to PW-3, Shri Amar Singh, Up-Pradhan, has not been substantiated. The statement of PW-3, Shri Amar Singh, is not at all confidence inspiring, as he is Up-Pradhan of a different village and there is nothing on record that he at any point of time advised the complainant to make a written complaint to the Panchayat to which she belongs. In these circumstances, the prosecution has failed to prove that the deceased was given a cruel treatment by the accused persons for not bringing dowry or they wanted dowry from the deceased or her family. Therefore, the judgment as cited by the learned Counsel for the appellant, i.e., V.K. Mishra & Another v. State of Uttrakhand & Another (supra), wherein vide paras 7 and 39 it has been held as under:

“7. In order to attract application of Section 304B, IPC, the essential ingredients are as follows:

1.

The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

2.

Such a death should have occurred within seven years of her marriage.

3.

She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

4.

Such cruelty or harassment should be for or in connection with demand of dowry.

5.

Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

On proof of the essential ingredients mentioned above, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 113B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. “Soon before” is a relative term and it would depend upon circumstance of each case and no strait-jacket formula can be laid down as to what would constitute a period “soon before the occurrence.” There must be in existence proximate live link between the facts of cruelty in connection with the demand of dowry and the death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

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39. In Sher Singh v. State of Haryana, it had been held there in that the use of word “shown” instead of “proved” in Section 304-B, IPC indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words “shown” will have to be read up to mean “proved” but only to the extent of preponderance of probability. Thereafter, the word “deemed” used in that section is to be read down to require an accused to prove his innocence but beyond reasonable doubt. The “deemed” culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong “presumption” of his culpability. The accused is required to rebut this presumption by proving his innocence. The same view was reiterated in Ramakant Mishra v. State of U.P”.

The judgment (supra) is not applicable to the facts of the present case.

23. Likewise, the learned Additional Advocate General has placed reliance on another judgment of Hon’ble Supreme Court, i.e., Rajinder Singh v. State of Punjab (supra), apposite para of the judgment is extracted hereunder for ready reference:

“20. Given that the statute with which we are dealing must be given a fair, pragmatic and common sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb case followed by the judgment of Vipin Jaswal do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of the married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly an unequivocally point otherwise.”

This judgment is also not applicable to the facts of the present case, as no demand of dowry or demand for any other article stands proved on record.

“15. We are, however, of the view that for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played a substantial part in inducing or causing one spouse’s loss of other spouse’s affection. Mere acts, association, liking as such do not become tortious. Few countries and several States in the United States of America have passed legislation against bringing in an action for alienation of affection, due to various reasons, including the difficulties experienced in assessing the monetary damages and a few States have also abolished “criminal conversation” action as well.

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21. This Court in Girdhar Shankar Tawade v. State of Maharashtra, 2002 5 SCC 177, examined the scope of the explanation and held as follows:

“3. The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the Legislatures: whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the Legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498A.”

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26. Section 113A only deals with a presumption which the Court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498A, IPC, the Court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498A, IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extra marital affair was of such a degree which was likely to drive the wife to commit suicide.”

25. The learned Counsel for the respondents has also placed reliance on another judgment of the Hon’ble Supreme Court in another case titled K.R.J. Sarma v. R.V. Surya Rao and Another, II (2013) DMC 760 (SC)=V (2013) SLT 671=III (2013) CCR 40 (SC)=(2013) 4 SCC 118, wherein it has been held as under:

“7. Also from the evidence of PW 1 we do not find any act of cruelty or harassment as such committed by the respondent within the meaning of Clauses (a) and (b) of the Explanation to Section 498A, IPC. Clause (a) of the Explanation to Section 498A, IPC states that any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman amounts to ‘cruelty’. We have noticed from the evidence of PW 1 that on the day the deceased committed suicide, the respondent was not in any way guilty of any wilful conduct which was likely to drive the deceased to commit suicide, nor did the respondent cause any grave injury to the deceased. Clause (b) of the Explanation to Section 498A, IPC states that harassment of a woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand amounts to ‘cruelty’. Though PW 1 has stated that the respondent used to take away the salary of the deceased, he has very fairly conceded in cross- examination that he had not stated before the police that the respondent used to take away the salary of the deceased. Considering this evidence of PW 1, we are of the view that the concurrent findings of the Trial Court and the High Court that the respondent was not guilty of the offences under Sections 498A and 306, IPC should not be interfered with by us in exercise of our powers under Article 136 of the Constitution.”

The above judgments relied upon by the learned Counsel for the respondents are fully applicable to the facts of the present case.

26. Lastly, the learned Counsel for the respondents has placed reliance on the judgment of Hon’ble High Court of Punjab and Haryana rendered in Devender and Others v. State of Haryana, 1994 CLJ 1679, wherein it has been held that the fact of deceased’s being immediately taken to hospital by the accused immediately on consuming pills proved the good conduct of the accused persons. Apposite paras of the judgment (supra) are reproduced hereunder:

“12. It is also significant to note that after the appellants came to knew that the deceased was unwell, she was immediately removed by Suraj Bhan brother of Kapoor Singh, appellant and Smt. Murti, mother-in-law of the deceased, to the Medical College and Hospital at Rohtak, at 7.35 a.m. on 24.4.1985 where she was examined by Dr. Kitab Singh, P.W.3. According to the said doctor, the patient had consumed some tablets used for preservation of wheat mistaking it for some tablets used for headache, as stated by the mother-in-law accompanying the patient whereas patient herself refused to give any details. Obviously the deceased was removed to the hospital for treatment much before the arrival of the complainant party. These circumstances rather indicate that the conduct of the appellant was not consistent with the guilty conscience. The reports of the Chemical Examiner also indicate that visceras taken from stomach, small intestines, liver, spleen and kidney contained aluminium phosphide. Post mortem report further shows that the deceased also had four injuries on her body including injuries on her right thigh. The said injuries, however, were not sufficient in the ordinary course of nature to cause death and death of Mahle in all probability was due to intake of phosphide poisoning. In the absence of other material evidence, this circumstances alone would not be sufficient to prove the guilt against the appellants beyond reasonable doubt.

13. There is no reliable material on the record to prove that the appellants within reasonable time before the death of Smt. Mahle had abetted the commission of suicide by her or that Devinder appellant husband and Kapoor Singh and Mst. Murti appellants, parents-in-law of Mahle deceased subjected her to cruelty by willful conduct which drove Smt. Mahle to commit suicide or caused her harassment with a view to coerce her and her father to meet their unlawful demand for dowry or valuable security, on account of their failure to meet such demand. Rather the defence plea that the deceased was frustrated and greatly perturbed or agitated because she could not bear any child even after more than seven years of her marriage and committed suicide by intake of aluminium phosphide on that account seems probable, in view of the peculiar facts and circumstances of the present case.”

The judgment (supra) is fully applicable to the case in hand, as it cannot at all be overlooked that the accused persons shifted the deceased to nearby hospital, when they noticed that she has consumed some medicines.

27. The Hon’ble High Court of Himachal Pradesh in Criminal Appeal No. 361 of 2011, decided on 3.9.2012, titled as Vishal v. State of Himachal Pradesh, has held as under:

“13. In Vithal Eknath Adlinge v. State of Maharashtra, AIR 2009 Supreme Court 2067, while reiterating the above principles, annunciated in Sharad Birdhichand Sarda (supra), the Hon’ble Apex Court has further held as under, vide paras 6 to 16 of the report:

“6. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063; Eradu and Ors. v. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa v. State of Karnataka, AIR 1983 SC 446; State of U.P. v. Sukhbasi and Others, AIR 1985 SC 1224; Balwinder Singh v. State of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P., AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

7. We may also make a reference to a decision of this Court in C. Chenga Reddy and Others v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus:

“In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence…..”

8. In Padala Veera Reddy v. State of A.P. and Others, AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

“(1)

the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2)

those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3)

the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4)

the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

9. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

10. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:

(1)

the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2)

the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3)

in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4)

in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

(5)

if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.”

11. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

12. In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343, wherein it was observed thus:

“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

13. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1)

the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established;

(2)

the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3)

the circumstances should be of a conclusive nature and tendency;

(4)

they should exclude every possible hypothesis except the one to be proved; and

(5)

there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

14. These aspects were highlighted in State of Rajasthan v. Raja Ram, 2003 (8) SCC 180; State of Haryana v. Jagbir Singh and Another (2003 (11) SCC 261) and Kusuma Ankama Rao v. State of A.P., Criminal Appeal No. 185/2005 disposed of on 7.7.2008.

15. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish, 2005 (3) SCC 114, it was noted as follows:

“22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.”

16. In Ramreddy Rajesh Khanna Reddy v. State of A.P., 2006 (10)SCC 172, it was noted as follows:

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the Courts should look for some corroboration”. (See also Bodh Raj v. State of J&K, 2002 (8) SCC 45).”

14. In the present case, the following circumstances were pressed into service by the prosecution to prove its case and the same have been held to be duly proved by the learned Trial Court:

1.

The illicit relation of deceased with the accused Neelam.

2.

The presence of both accused Neelam and her husband co-accused Vishal together in the intervening night of 29th and 30th June, 2009.

3.

The injury of incised wound on the hands of accused Vishal.

4.

Blood stains on the floor, wall of the room, in which deceased was lastly seen to have entered by PW5 Naresh Kumar.

The blood stains on the scooter of accused Vishal as well as its engine cover.

7.

The blood stains on the clothes of both the accused, the recovery of which had been effected by the police at the instance of the accused.

8.

Both the accused disappeared from their residence, they remained absconded up till 3rd and 4th July, 2009.

9.

The presence of blood on the weapon of offence i.e. Kirpan.

10.

The extra judicial confession made by accused Neelam to PW15 Kailash Chand that she along with the accused Vishal had killed the deceased.

15. The case is required to be judged in the light of the above legal position, laid down by the Hon’ble Supreme Court, with regard to appreciation of circumstantial evidence and we proceed to undertake the exercise, by taking up the circumstances individually/ collectively, keeping in view the nature thereof.

Circumstance Nos. 1 and 2.

16. Both the circumstances, being interconnected, requiring common appreciation of evidence and law, are taken up together for discussion and decision. Whereas the first circumstance relates to the alleged illicit relations between C-2 Neelam Sharma and the deceased, the second circumstance is in the nature of the deceased having been last seen together, in the company of C-2 Neelam Sharma, at the relevant time, that is, during the night intervening 29/30.6.2009, at her parental house.

17. PW-5 Naresh Kumar is a co-villager and friend of the deceased. He has deposed that in June, 2009 he was working in a Mobile shop at Nangal Bhoor. He knew the deceased, who was of his village. He used to remain in touch with him. According to him, about two years prior to the death of the deceased, he had told him that he was having relations with C-2 Neelam Sharma and both of them had been meeting each other. The witness further goes on to depose that once he had brought the deceased to the house of C-2 Neelam Sharma at Kandrori on his motor-cycle. On 29.6.2009, at about8/8.30 p.m., the deceased informed him telephonically that he intended to go to C-2 Neelam Sharma’s place. Thereafter, again at 10.30 p.m. the deceased telephoned him and asked him to come. It was at about11 p.m. that the witness took the deceased to Kandrori Railway Station on his motor-cycle. He remained at the railway station and saw C-2 Neelam Sharma roaming in her courtyard, then the deceased switched on the light of his mobile, upon which C-2 Neelam Sharma came to the gate and took him (deceased) inside.Then the lights of the Verandah were switched off.

Thereafter, the witness came back. He received a telephone call, when he wanted to talk, the call got disconnected. Then he made a telephone call to the deceased, but he did not pick up the phone. On the next day, at about 1.15 p.m., he received telephonic information that the dead body of the deceased was lying under Bain Attarian Bridge. Accordingly, he went there and saw the dead body of the deceased. The witness identified C-2 Neelam Sharma in the Court.

28. After exhaustively discussing the evidence and the law, it is clear that the prosecution has failed to prove that cruel treatment was given to the deceased and under these circumstances the presumption that it was a dowry death within seven years of marriage does not at all arise.

29. Section 113-A of the Evidence Act deals with presumption as to abetment of suicide by a married woman. It mandates that if a married woman commits suicide within seven years of her marriage due to the reasons that she was subjected to cruelty by her husband or relatives then the Court raised the presumption of the fact that the husband or such relative abetted the suicide. Primarily for proving the said presumption it has to be established that the wife was subjected to cruelty, as ingrained in Section 498-A, IPC. Certainly, the said presumption is rebuttable. Section 107 of IPC defines ingredients of abetment as under:

(i)

instigation to commit an offence;

(ii)

engaging in a conspiracy to commit an offence; and

(iii)

aiding the commission of offence.

However, in essence, none of the above ingredients is attracted in the case in hand, as no evidence qua instigation or abetment by the accused persons to the deceased has come on record. Likewise, there is also nothing on record to demonstrate that the accused persons hatched a conspiracy for commission of an offence. Lastly, nothing is emanating from the record that the accused persons were instrumental in aiding the deceased in committing the suicide. Thus, the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt. Further the prosecution has also failed to prove that the accused persons had taken away the ornaments of the deceased. The net result of the above discussion is that the prosecution has not been able to prove the guilt of the accused persons.

30. It has been held in K. Prakashan v. P.K. Surenderan, VIII (2007) SLT 750=IV (2007) DLT (CRL.) 485 (SC)=IV (2007) BC 586 (SC)=(2008) 1 SCC 258, that when two views are possible, Appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of Trial Court was neither perverse, nor suffer from any legal infirmity or non-consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified.

31. The Hon’ble Supreme Court in T. Subramanian v. State of Tamil Nadu, I (2006) SLT 261=I (2006) CCR 62 (SC)=(2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.

32. Keeping in view what has been discussed hereinabove, in a nut shell it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Thus, there is no occasion to interfere with the well reasoned judgment of the learned Trial Court, as such the appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly.